The Constitution of Parenthood.

• Author: NeJaime, Douglas

Table of Contents Introduction I. The Constitution of Parental Recognition and the Claims of Unmarried Fathers A. Marriage and Parentage: The Historical Centrality of Marriage to Paternity B. Biological and Social Fathers in the Nonmarital Family 1. A break from tradition: Protecting the unmarried biological father 2. Unmarried fathers in the age of equality a. Vindicating the nonmarital family b. Sex equality and unmarried fathers C. (Unmarried) Biological Fathers vs. (Married) Nonbiological Fathers 1. Unmarried fathers as legal strangers 2. Protecting nonbiological fathers in marital families D. The Triumph of Marriage--and the Nonbiological Father E. State Responses to Constitutional Decisions II. Nonparental Caregivers and the Constitution A. The Constitutional Status of Blood Relatives B. The Constitutional Status of Foster Parents III. The Constitution of Same-Sex Couples' Families A. Marriage and the Constitutional Status of Same-Sex Couples B. Parenthood and the Constitutional Status of Same-Sex Parents IV. Family Law's Functional Turn, Evolving Understandings of Parenthood, and the Constitution A. De Facto Parentage and Nonmarital Families B. Nonbiological Parental Recognition in the Age of LGBT Equality C. The Functional Turn Continues: Multiple Parents V. The Constitutional Liberty Interests of Nonbiological Parents A. Reasoning About Family Relationships and the Constitution 1. Reasoning about due process and the family 2. Marriage equality and changing understandings of the family 3. The parental relationships due process protects B. Consequences of Nonbiological Parents' Liberty Interest 1. Nonbiological parents in same-sex couples 2. Unmarried biological fathers and married nonbiological fathers 3. Parents in "non-traditional family arrangements" C. Concerns, Consequences, and Questions 1. Indeterminacy and intervention 2. Who is protected? 3. What follows from a protected liberty interest? Conclusion Introduction

Parentage--the legal determination of who is a parent--arises primarily as a matter of state family law. In the past several years, family-law authorities--including courts and legislatures, as well as scholars and lawyers engaged in academic work, law reform projects, and litigation (1)--have transformed parentage. In a growing number of states, individuals parenting children to whom they are not biologically related have been treated as legal parents. Recognition of nonbiological parent-child bonds has occurred in a range of families, including nonmarital families, families headed by same-sex couples, and families formed through assisted reproduction. (2)

Rather than require nonbiological parents to adopt, family law has developed principles of parental recognition that turn on social criteria. Courts in some states have accommodated nonbiological parents by means of common law and equitable devices that recognize a person as a parent when she has acted as a parent to the child and the child views her as a parent. (3) Courts and legislatures also have adapted existing parentage presumptions--which conventionally were assumed to correspond to biological parentage--to nonbiological parents. (4) For example, they recognize as a parent the individual, whether a man or a woman, who is married to the woman who gives birth to the child. (5) With assisted reproduction, intentional parenthood also has emerged as an important concept; an individual who consents to assisted reproduction with the intent to be a parent is often treated as a legal parent. (6) In a growing number of jurisdictions, family law provides multiple paths for nonbiological parents to attain legal status. (7) Nonbiological parentage arises not merely when no biological parent is present; the claims of nonbiological parents can trump competing claims by those with biological ties to the child. (8)

But not all states have followed this path. Some continue to hew to a view of parenthood tethered to biological connection. Family-law regimes in these jurisdictions fail to capture parent-child relationships that exist in fact--relationships that may develop in the absence of biological connection and without adoption. (9) When individuals are told that they are not parents as a family-law matter, they may seek protection under the Constitution. Given that the Constitution has long been read to protect parents' relationships with their children as a matter of substantive due process, these individuals claim that the state's refusal to recognize them as parents violates their constitutional rights. (10)

Yet these claimants often find no relief, as courts conclude that only biological parents possess a right to parental recognition protected by the Due Process Clause. (11) Consider a recent example. In Hawkins v. Grese, an unmarried same-sex couple decided to have a child. (12) After Grese gave birth to a child conceived with donor sperm, the two women raised their son together. (13) When they ended their relationship in 2014, the child was seven. (14) They informally shared custody for another two years, but "[e]ventually, relations between Grese and Hawkins soured and Grese terminated [the child]'s contact with Hawkins." (15)

Virginia courts refused to recognize Hawkins, the nonbiological mother, as a parent under the state's family law. (16) Without marriage to the biological mother and without a biological connection herself, Hawkins was a legal stranger with no rights to custody or visitation; Hawkins asserted that this treatment violated her constitutional rights. (17) In 2018, the Virginia Court of Appeals rejected this argument, concluding that Virginia's "definition of 'parent' is not inconsistent with Supreme Court jurisprudence regarding the nature of the family and parentage." (18)

Quoting a 1977 Supreme Court decision, the state court reasoned that the "'usual understanding of "family" implies biological relationships, and most decisions treating the relation between parent and child have stressed this element.'" (19) For the court, biological parenthood had a prepolitical status--"predating the bill of rights"--whereas nonbiological parenthood was "a legal construct," or "'an arrangement in which the State has been a partner from the outset.'" (20) Again quoting Supreme Court precedent, the court explained:

There is no "serious[] dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of blood relationship," but natural, biological parentage is a unique relationship predating any legal arrangement. (21) Ultimately, the court refused to undertake "[a] judicial expansion of the term 'parent' to include someone not bound by blood or law." (22)

The appeals court reached this conclusion despite the parent-child relationship that existed in fact and the trauma inflicted on the child by ending that relationship. Indeed, the trial court had found that a "parent-child bond" had formed between Hawkins and the child and that the child "would be harmed if that bond was severed." (23) Observing that the child "was raised by Hawkins and Grese in their shared home until they ended their relationship," (24) the appellate court conceded that the child would benefit from "a continuing relationship with Hawkins." (25) Yet the court accepted Grese's decision to cut Hawkins out of the child's life: As the biological mother, Grese possessed constitutional authority to make "child rearing decisions" and thus could exclude her former partner. (26) In the court's view, the Constitution offered no protection to the nonbiological mother; instead, due process protected the biological mother's right to exclude the child's other parent.

As the reasoning of the Hawkins court illustrates, the biological basis of constitutional protection for parenthood often rests on a reading of Supreme Court precedents that are now decades old. Hawkins, for instance, heavily quotes Smith v. Organization of Foster Families for Equality & Reform (OFFER), a 1977 decision denying the constitutional claims of foster parents. (27) Other courts similarly rely on Supreme Court decisions from the 1970s and 1980s concerning the rights of unmarried fathers. (28) Consider a Florida appellate court's 2015 decision in Russell v. Pasik, rejecting the claim of a nonbiological mother in an unmarried same-sex couple. (29) The court drew on Lehr v. Robertson, (30) a 1983 decision, in reasoning that, while "the act of assuming parental responsibilities and actively caring for a child is sufficient to develop constitutional rights in favor of the parent[,] ... it is the biological connection between parent and child" that furnishes the opportunity for a constitutionally protected relationship. (31) Constitutional precedents, on this view, have both assumed and produced a model of parenthood that is at base biological.

Family life and family law have changed dramatically since the time when the Court decided OFFER and Lehr. Indeed, the Court itself has participated in those changes. Most strikingly, its decisions on the rights of same-sex couples responded to shifts in the cultural and legal status of gays and lesbians, and in turn prompted further progress in the treatment of same-sex couples' families. (32) Yet courts largely have failed to relate the recognition of same-sex couples to constitutional understandings of the parental relationships that due process protects.

Hawkins again illustrates this point. There, the nonbiological mother argued that recent Supreme Court decisions recognizing the constitutional rights of same-sex couples--including Obergefell v. Hodges, extending the right to marry--"implicitly redefined 'parent' or 'family.'" (33) Unlike different-sex couples, same-sex couples necessarily feature a nongenetic parent, and thus the Court's protection of same-sex couples' families entailed the protection of nonbiological parents. Yet, in the Virginia court's eyes...